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socrateaser, Lawyer

Category: Intellectual Property Law

Satisfied Customers: 36057

Experience: Retired (mostly)

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Hi. I am a sheet music publisher. I provide sheet music and

Customer Question

Hi. I am a sheet music publisher. I provide sheet music and additional products to scholastic organizations for competitive performance, specifically marching bands and indoor percussion ensembles. Some of our music includes cues for sound effects. We would like to provide an audio file or CD soundtrack as part of their sheet music package which contains the sounds necessary for that show. Our problem has two levels: First, it seems that most sound effect sites won't allow us to resell the sound effects by themselves, so we're coming up dry with resources for our goal. We have considered either 1) using the effects on our demo recording then pointing our customer to the site where we got the effects so they can purchase their own license for use. This should work fine and be legal, but it's pretty inconvenient for the customer. or 2) paying someone to create the effects for us and owning the rights to them. This is probably not worth the return, so it's not my favorite option.

Furthermore, some of the sounds we want are proprietary, such as the key click sound from an iPhone, the Apple computer startup sound, etc. I feel like we COULD reproduce these sounds, i.e record something similar to the click and digitally morph it to be recognizable as the key click sound...and/or simply record a synth playing that startup chord on a patch that sounds the same.

The two main questions are: can a sound such as the start-up chord on a Mac be copyrighted? And if it IS copyrighted, can we create a sound just like it from scratch and avoid infringement, or are we still infringing by doing that? If it's NOT copyrighted, can we just rip it off and use it?

Sounds such as computer, or cell phone ringtones and keystrokes can be the subject of a copyright infringement action, if the sound is sufficiently creative and memorable to be immediately associated with a particular product or service. It is a fact that manufacturers spend considerable amounts of resources for human factors engineers and musicians to develop unique identifiers for a product, and copying that sound for use elsewhere is copyright infringement, no different than were someone to copy "Mr. Touchdown, USA."

Creating a sound which is so similar that it would be identified with the original, is also copyright infringement. So, this is a nonstarter.

If you want to be able to use these creative works with your products, then you will have to obtain a distribution license from the copyright owner -- or, you will have to, as you point out, direct the users to the copyright owner, so that the users can purchase the license from the copyright owner, themselves.

I wish there were a way around this issue, but there isn't. You are not engaged in "fair use," here, because you have a distinct commercial intention, which would operate to reduce the owner's profits from its creative work. Thus, the ordinary copyright infringement laws apply, and you will need a license to reuse or distribute the various sound effects.

I'm interested in drilling this down a bit and getting specific about some of them as they all don't seem to meet the criteria at the end of your explanation (we'd "reduce the owner's profits from its creative work." Here's the list of sounds I need:

Morse code samples.

(actual sample) boop boop boop...You're call can not be completed as dialed, please check the number and try your call again.

(actual sample) You have reached a number that is disconnected or no longer in service.

I'm interested in drilling this down a bit and getting specific about some of them as they all don't seem to meet the criteria at the end of your explanation (we'd "reduce the owner's profits from its creative work." Here's the list of sounds I need:

1. Morse code samples.

A: Assuming you were copying the sound of Samuel Morse's original invention, it would be public domain, because the telegraph was invented before 1923 (the earliest date of a protectable sound under the U.S. Copyright Act). Assuming you are copying a sample of someone else's creation of a sound that mimics that of a Morse code click, then that is the creative work of the creator, and you would need a license. This is no different than recording the improvisations of a troubadour signing on the sidewalk for tips. It's your recording, so it's your copyright of the sound recording. However, if the song being sung is written by someone else, then you are infringing the author's copyright. And, if you use the recording of the troubadour's voice without permission, for profit, then you have made a commercial misappropriation, which is an entirely different legal action.

2. (actual sample) boop boop boop...You're call can not be completed as dialed, please check the number and try your call again.

A: An tonal experience of a natural or artificial event, such as the song of a bird, or the closing or opening of an electronic relay, is not a "creative work," because: (1) the Copyright Act extends to "persons," and neither a bird, nor a electronic relay sound is within the scope of that definition; and (2) the act of creation is affirmative. It is the "fixed expression" of an idea. You don't wake up in the morning and find that your pen has leaked on some music paper, and that the leak represents notes which make out a hit song. That leak is not the creative work of anyone (except God, who is also not entitled to protection under the U.S. Copyright Act, because God is a non-human entity). You may decide that the leaked ink makes out an interesting possible melody, and then you transcribe that melody onto another piece of music paper -- and then you have an act of creation subject to copyright protection.

So, a busy signal, if it was intentionally created for the its purpose, by a phone company at some past moment (after 1922), and unless it is deemed abandoned into the public domain due to no attempt to ever protect the sound (probably so, but not sure), then it's subject to copyright protection. But, if someone makes a sound recording of a busy signal, then that sound recording is protectable, even if the sound being recorded is not -- no different than were you to record Beethoven's 5th Symphony. The Symphony isn't copyright protected, but your recording of the symphony is protected.

All of your remaining examples fall within the scope of my explanations above.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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